In the Matter of the Application of Antonia Bachiller De Ponce De Leon, a Judgment Creditor, Appellant, for the Examination of the Mutual Reserve Fund Life Association, Respondent, in a Proceeding Supplementary to an Execution against the Property of the Northwestern Life Assurance Company, the Judgment Debtor

In the Matter of the Application of Antonia Bachiller De Ponce De Leon, a Judgment Creditor, Appellant, for the Examination of the Mutual Reserve Fund Life Association, Respondent, in a Proceeding Supplementary to an Execution against the Property of the Northwestern Life Assurance Company, the Judgment Debtor. Supplementary proceedings — a third, person cannot escape an examination by filing an affidavit stating his relation to the debtor’s property. A person for whose examination, as a third party in proceedings supplementary to execution, an order has been made under section 2441 of the Code of Civil Procedure, cannot avoid such examination by submitting at the time fixed therefor an affidavit, setting forth the property of the judgment debtor which such third party has received and the agreement under which such third party holds it. Appeal by Antonia Bachiller De Pence De Leon from an order of the Supreme Court, made at the Yew York Special .Term and ■entered in the office of the- clerk of the county of Yew York -on the 24th day of May, 1901, denying her' application to examine, the Mutual Reserve Fund Life .Association as a third party in a proceeding supplementary to execution. The judgment creditor obtained an order for the examination of the Mutual Reserve Fund Life Association as a third party in a proceeding supplementary to an execution against the property of the Northwestern Life Assurance Company, the judgment debtor. Upon the day fixed for the examination a statement in writing, sworn to by an officer of the Mutual Reserve Association, was presented, showing the property which it had received and purporting to state the rights which that association had therein; and annexed was a copy of the agreement under which the association obtained the property formerly belonging to the judgment debtor of the value of $294,168.77, the title to which it claims by virtue of the provisions of-said agreement. The affidavit thus concludes:' “That it (the Mutual Reserve Association), has received from said Northwestern Life Assurance Company no other property. That it has in its possession, Or under its control, no property belonging to said * * * Company; and it is not indebted to said * * * Company in any sum of money whatever.” This was met by the affidavit of one of the attorneys for the judgment creditor, who stated that the summary of the property received, together with the other, averments of the affidavit, “ are false and evasive, and that they do-not fully and truly set forth the character and bona fides of- the transfer • * * * of' the judgment debtor’s property, or of the assets thereby received; ” and the opposing affidavit contains additional statements of what the judgment creditor desires to obtain from the examination. Upon this showing the Special Term ordered “ that further examination of the said Mutual Reserve Fund Life Association, as such third party be, and the same hereby is, denied,” From such order the judgment creditor appeals. David B. Simpson, for the appellant.. W. T. B. Milliken, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The question presented upon this appeal is whether a third party-ordered to attend an examination under section 2441 of the Code of Civil Procedure, can avoid such examination by submitting an affidavit asserting its ownership of the property which had belonged to the judgment debtor and showing how much property there was and under what circumstances the transfer thereof took place. Cases can be found based on the language of the old Code which sanction such a practice, some of which are referred to in the memorandum of the learned judge at Special Term, but in view of the provisions of the present Code of Civil Procedure, we do not think that the practice can be supported. The language employed in section 2441 of the Code is that “ the judgment creditor is entitled to an order requiring that person or corporation to attend and be examined concerning the debt or other property.” This language, it will be noticed, is similar to that used in section 2435 of the Code of Civil Procedure, which relates to the order for the examination of the judgment debtor, that the judgment creditor “ is entitled to an order requiring the debtor, under the judgment or order, to attend and be examined concerning his property.” And in section 2444 of the Code it is provided, “ Upon an examination under this article * * *. Either party may be examined as a witness in his own behalf, and may produce and examine other witnesses, as upon the trial of an action.” Evidently this last section embraces the examination both of the judgment debtor and a third party, because both are “ under this article; ” and thus the distinction which existed by reason of the language employed under the former Code, between the examination of a judgment debtor and a third party, has been eliminated. To emphasize this view, we have in the present Code an entirely new provision in. section 2460, which reads as follows: “ A party or a witness examined in a special proceeding authorized by this article, is not excused from answering a question on the ground * * * that he or another person claims to be entitled as against the judgment creditor, or a receiver appointed or to be appointed in the special proceeding, to hold property derived from or through the judgment debtor.” The examination, therefore, which is now allowed of a third, party to whom property of the debtor has been transferred is as full and extensive as of the judgment debtor himself, and the right, which' the creditor has to such 'an examination cannot be taken away by the presentation of a statement by the third person as to-his relations concerning the property even though such' statement be sworn to, for the reason that it is not, in our opinion, the equivalent of the- examination allowed by the Code. The right which in express language is given is to examine the third party; and although it was within the power of the court, to prevent such right, of examination being abused, and which power should be exercised,, it was not within its power to take away or to limit that right in the way here sought to be done. The order appealed from should accordingly be reversed, with ten dollars costs and disbursements, and the order for the examina^tion of the third party should be reinstated. Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and order for examination reinstated.